ICE Declares That Key Data It Holds Are "Unavailable"

Unlawful Denial of Records Blocks Public Understanding of Immigration Enforcement

Syracuse, NY — The Transactional Records Access Clearinghouse (TRAC) today charged the Immigration and Customs Enforcement (ICE) agency of serious legal and procedural violations in its withholding of performance data about how the agency is enforcing the immigration laws.

The deficiencies, detailed in a letter TRAC sent the agency today, involve ICE's violation of long standing provisions of the Freedom of Information Act (FOIA), the agency's own administrative rules and the stated policies of Attorney General Eric Holder and President Obama in the handling of a request from TRAC for anonymous alien-by-alien statistical data about the arrests, detentions, charges and removal activities of the agency.

The agency's actions — spelled out in a three-page September 22 letter to TRAC — have the effect of denying the American people concrete information about an important and controversial aspect of a key responsibility of the federal government: what is it doing and not doing to enforce the nation's immigration laws.

Among the anonymous statistical data that ICE previously released but now said were "unavailable" were the city or state where the alien's apprehension took place, the facility where the alien is currently being detained, the nature of the formal removal charges, the details of any criminal charges and the alien's marital status.

Under the FOIA, all federal agencies are required to provide specific reasons — such as national security or privacy — when they withhold records from requestors. But in the September 22 letter, FOIA Director Catrina M. Pavlik-Kennan, did not cite any of the possible exemptions to justify her decision not to provide a large segment of the data requested in May by TRAC.

In regard to a second part of TRAC's request, Pavlik-Keenan unilaterally imposed a $450,000.00 processing fee, half of which had to be paid in advance before ICE would begin processing the data. The agency did not document how this fee was determined or explain why TRAC — a part of Syracuse University — had not been considered an educational institution. Under the law, requesting organizations are entitled to both a full explanation of a proposed fee and how it has been classified.

(For the last five years, with the support of Syracuse University, the Knight Foundation, the Ford Foundation, the Carnegie Corporation of New York, the Four Freedoms Fund and others, TRAC has used the FOIA to obtain extensive data from a range of different agencies in the Justice Department and the Department of Homeland Security. With this information we have posted numerous special reports on trac.syr.edu.)

One of President Obama's first actions when he came to office was to declare his administration's commitment "to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government." Shortly thereafter, Attorney General Holder issued a series of policies and guidelines on the subject requiring all federal agencies to improve their handling of FOIA requests.

Six months ago, another DHS agency — the U.S. Citizenship and Immigration Services — informed TRAC that a $111,930.00 payment would be required to obtain a description of the information stored in one of its databases. After news of this demand was posted on TRAC's web site, USCIS told TRAC that the agency had acted improperly and it subsequently provided the records to TRAC.